Exhibit 1
VOTING TRUST AGREEMENT
Relating to Shares of
QUINTUS CORPORATION
THIS VOTING TRUST AGREEMENT (the "Agreement") is made and entered into
as of November 15, 1999, by and among Sprout Capital VI, L. P., Sprout
Capital VII, L. P., DLJ ESC II, L. P., The Sprout CEI Fund, L. P., DLJ
Capital Corporation, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc. and Norwest
Bank Indiana, N. A. as trustee (the "Trustee").
WHEREAS, the parties hereto desire to record their arrangements with
respect to shares of Common Stock, par value $.001 per share, of
Quintus Corporation, a Delaware corporation whose principal offices are
located at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Corporation").
NOW, THEREFORE, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. In this Agreement:
(a) "Control Affiliate" means DLJ or any person or entity
controlling, controlled by or under common control with, directly or
indirectly, DLJ.
(b) "DLJ" means ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇, Inc., a Delaware
corporation, and its successors.
(c) "DLJSC" means ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation, a Delaware corporation, and its successors.
(d) "DLJ Affiliate" means any person or entity who is a Control
Affiliate, Employee Affiliate or Other Affiliate.
(e) "DLJCC" means DLJ Capital Corporation, a Delaware
corporation, wholly owned by DLJ.
(f) "ESC" means DLJ ESC II, L.P.
(g) "Employee Affiliate: means any person who is a director of or
employed by (or who is the spouse, relative, or relative of a spouse,
in each case residing in the home of a person employed by) a Control
Affiliate.
(h) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(i) "Holder" means from time to time, any person or entity for
which Shares are held hereunder by the Trustee.
(j) "Majority Holders" means from time to time, Holders of Trust
Certificates representing at least 50% of the Shares then deposited
hereunder.
(k) "Other Affiliate" means any person or entity which has a
substantial business relationship with a Control Affiliate.
(l) "Securities Act" means the Securities Act of 1933, as
amended.
(m) "Share Equivalents" means to the extent applicable, and unless
the context otherwise requires, all securities convertible into,
exchangeable for, or carrying the right to acquire, voting capital
stock (of any class) of the Corporation or subscriptions, warrants,
options, rights or other arrangements obligating the Corporation to
issue or dispose of any of its shares of the voting capital stock (or
any class) or any ownership interest therein.
(n) "Shares" means (i) all shares of the voting capital stock (of
any class) of the Corporation and (ii) Share Equivalents.
(o) "Sprout VI" means Sprout Capital VI, L.P.
(p) "Sprout VII" means Sprout Capital VII, L.P.
(q) "Sprout CEO Fund" means The Sprout CEO Fund, L.P.
2. DEPOSIT.
(a) Sprout VI, Sprout VI, ESC, Sprout CEO Fund and DLJCC hereby
assign and deliver or have caused to be assigned and delivered to the
Trustee to be held pursuant tot his Agreement as an aggregate of
$10,135,646 Shares, in the amounts set forth on Schedule A hereto (the
"initial deposit") and, subject to the provisions of Section 2(b)
below, DLJ shall assign and deliver or cause to be assigned and
delivered to the Trustee all Shares owned by any DLJ Affiliate or
acquired by any DLJ Affiliate at any time in excess of five percent
(5%) in the aggregate of the total number of shares of the voting
capital stock (of any class) of the Corporation outstanding on the date
of this Agreement. Each person for whom Shares are held from time to
time by the Trustee hereunder shall be a Holder and shall be bound by
all the provisions of this Agreement applicable to Holders.
(b) For purposes of determining for Section 2(a) only, whether
more than five percent (5%) in the aggregate of the total number of
shares of the voting capital stock (of any class) of the Corporation at
any time outstanding are owned by DLJ Affiliates, there shall be
excluded from the calculation of shares owned by DLJ Affiliates, and no
deposit of Shares shall be required hereunder as a consequence of any
Shares:
(A) held by DLJSC or any other Control Affiliate which is
registered as a broker-dealer under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), if such Shares are held in
connection with its normal trading activities as a broker-dealer;
provided, however, that DLJ will cause DLJSC or such other Control
Affiliate to agree that it will not vote such Shares,
(B) held by DLJSC or any other Control Affiliate which is a
registered broker-dealer under the Exchange Act, if such Shares are
held in a syndicate or trading account and were acquired in its
capacity as an underwriter or placement agent whether in an offering
registered under the Securities Act of 1933, as amended (the "1933
Act"), or otherwise; provided, however, that DLJ will cause DLJSC or
such other Control Affiliate to agree that it will not vote such
Shares,
(C) held by DLJSC for the account of any person or entity
other than a Control Affiliate or Employee Affiliate or in the name of
a customer account, which customer is a person or entity other than a
Control Affiliate or Employee Affiliate; provided, however, that DLJSC
may vote the Shares only when instructed by the beneficial owner
thereof or as otherwise permitted under the rules of all exchanges, if
any, on which the Shares are listed.
(D) held by an Employee Affiliate other than a person
holding the position of Senior Vice President or above (or performing
the comparable function) of DLJ or any of its subsidiaries or held by
an Other Affiliate, unless in either case a contract or other
arrangement (other than this Agreement) regarding the voting of such
Shares exists between such Employee Affiliate or Other Affiliate and
any Control Affiliate, or
(E) held by the Trustee pursuant to this Agreement.
3. TRANSFER ON BOOKS OF CORPORATION. The Trustee shall, to the extent
applicable, cause all Shares transferred to or deposited with it in its
capacity as Trustee hereunder to be transferred to it as Trustee on the
books of the Corporation and will issue and deliver to each Holder a
Voting Trust Certificate (a "Trust Certificate") for the number of
Shares so transferred to the Trustee.
4. FORM. Trust Certificates shall be in substantially the following
form (which such modifications as may be appropriate if the applicable
Trust Certificate represents rights or other arrangements with respect
to the voting stock defined as "Shares"):
"THE TRANSFER OF THIS VOTING TRUST CERTIFICATE IS SUBJECT TO
TERMS AND CONDITIONS SET FORTH IN THE VOTING TRUST AGREEMENT
DATED AS OF NOVEMBER ____, 1999, A COPY OF WHICH HAS BEEN FILE
IN THE REGISTERED OFFICE IN THE STATE OF DELAWARE OF QUINTUS
CORPORATION (THE "CORPORATION"). SUCH COPY IS OPEN TO
INSPECTION DAILY DURING BUSINESS HOURS BY ANY STOCKHOLDER OF THE
CORPORATION OR ANY BENEFICIARY OF THE VOTING TRUST CREATED
PURSUANT TO SUCH VOTING TRUST AGREEMENT."
QUINTUS CORPORATION
VOTING TRUST CERTIFICATE
Certificate No. _______ No. of Shares ______
This certifies that _______________________ (the "Holder") has
transferred to the undersigned Trustee or is otherwise the beneficial
owner of the above-stated number of Shares (as defined in the Voting
Trust Agreement referred to below) of Quintus Corporation, a Delaware
corporation (the "Corporation"), to be held by the Trustee pursuant to
the terms of the Voting Trust Agreement dated as of November ___, 1999
(the "Voting Trust Agreement"), a copy of which agreement has been
delivered to the above-named Holder and filed in the registered office
of the Corporation in the State of Delaware. The Holder, or its
registered assigns, will be entitled (i) to receive payments equal to
any and all cash dividends collected by the Trustee on the above-stated
number of Shares, (ii) to receive all other dividends or distributions
except to the extent that property received is required to be deposited
in the trust created by the Voting Trust Agreement, and (iii) to
receive a certificate or certificates representing that number of
Shares on the termination of the Voting Trust Agreement, in accordance
with its provisions.
The Voting Trust Certificate is transferable on the books maintained by
the Trustee at the principal office of the Trustee by the registered
holder hereof, in person or by duly authorized attorney, and upon
surrender hereof; and until so transferred the Trustee may treat the
registered holder hereof as the absolute owner hereof for all purposes.
The Holder and each subsequent registered holder hereof, by the
acceptance of this Voting Trust Certificate.
EXECUTED this _____ day of ______________, 1999.
NORWEST BANK INDIANA, N. A.
As Trustee
By: ______________________________________
Name:
Title:
[Form of Assignment for Reverse of Voting Trust Certificate]
For value received, _______________________ hereby sells, assigns, and
transfers unto _____________________________ the within Voting Trust
Certificate and all rights and interests represented thereby, and does
hereby irrevocably constitute and appoint ____________________________
attorney to transfer such Voting Trust Certificates on the books of the
within-named Trustee with full power of substitution in the premises.
Date: ____________________________________
Signed: __________________________________
5. ADDITIONAL TRUST CERTIFICATES. Any person may at any time deposit
with the Trustee additional certificates for Shares and thereby become
a Holder hereunder. Any DLJ Affiliate acquiring Shares shall, if
required under this Agreement, become a Holder by (a) depositing, or
causing to be deposited, certificates for Shares, duly endorsed for
transfer, with the Trustee and (b) accepting a Voting Trust Certificate
in respect of such Shares.
6. VOTING; POWERS. At all times prior to the termination of the
voting trust created herein, the Trustee shall have the exclusive right
to vote the Shares, or give written consent, in person or by proxy, at
all meetings of stockholders of the Corporation, and in all proceedings
in which the vote or consent, written or otherwise, of the holders of
Shares may be required or authorized by law.
The Trustee shall have full power and authority to vote the Shares in
its sole and absolute discretion, it being understood that the Trustee
will not communicate or consult with or receive instruction from any
DLJ Affiliate regarding such voting of such Shares, and to do any and
all other things and take any and all other actions as fully as any
stockholder of the Corporation might do it personally present at a
meeting of the stockholders of the Corporation. The Trustee may rely
(and shall be fully protected in so relying) upon advisors; provided
that such advisors are not DLJ Affiliates. At any time upon the
written request of the Trustee, DLJ shall promptly provide to the
Trustee such information as is reasonably necessary (including
certificates and/or other documents) in order to enable the Trustee to
carry out the foregoing obligations; provided that, for all purposes of
this Agreement, the Trustee shall have no duty to inquire or
investigate whether a person or entity is a DLJ Affiliate, shall not be
responsible for and shall have no personal liability in connection with
identifying a person or entity as a DLJ Affiliate unless a Responsible
Officer of the Trustee has actual knowledge that such person or entity
is a DLJ Affiliate and shall be entitled to assume and be fully
protected in assuming that a person or entity is not a DLJ Affiliate
unless a Responsible Officer of the Trustee has actual knowledge that
such person or entity is a DLJ Affiliate "Responsible Officer of the
Trustee" shall mean an officer of the Trustee in its principal
corporate trust office having primary responsibility for the
administration of the voting trust created under this Agreement.
7. Dividends. If the Corporation pays or issues dividends or makes
other distributions on the Shares, the Trustee shall accept and receive
such dividends and distributions. Upon receipt of dividends and
distributions the same shall be prorated among the Holders in
accordance with their interests and, subject to the next sentence, the
amount shall be distributed immediately pursuant to transfer
instructions set forth on Schedule B attached hereto. If the dividend
or distribution is in Shares, such Shares shall be held by the Trustee
under the voting trust created herein and new Trust Certificates
representing the Shares received shall be issued to the Holders.
Holders entitled to receive such dividends or distributions, or Trust
Certificates in respect thereof, described in this Section 7 shall be
those Holders registered as such on the transfer books of the Trustee
at the close of business on the day fixed by the Corporation for the
taking of a record to determine those holders of its stock entitled to
receive such dividends or distributions. The Trustee may, if
reasonably required in connection with any payment or distribution
hereunder to Holder, call for IRS Form W-9 or other appropriate
documentation from such Holder as a condition to making such payment or
distribution without deduction on account of withholding taxes. In the
performance of its duties to deliver cash dividends under this
Agreement, the Trustee shall not be obligated to risk its own funds and
will not be liable for taxes or other charges related to the delivery
of such dividends or distributions.
8. TERMINATION. The voting trust created herein shall terminate on
the earlier to occur of:
(a) ten years from the date hereof; or
(b) The written election of the Majority Holders, but only if
prior to the time such notice is given;
(i) DLJ shall have received an opinion of independent
nationally recognized counsel who are experts in matters involving the
federal securities law, that, immediately after such termination, no
DLJ Affiliate will be an "affiliate" of the Corporation within the
meaning of Rule 144 under the Securities Act; and
(ii) Trustee shall have received a certificate of an officer
of DLJ (in relying on which the Trustee shall be fully protected) to
the effect that clause (i) above has been satisfied, together with a
copy of the opinion called for thereby; or
(c) The written election of DLJ or the Majority Holders (notice of
which shall be provided to all other parties hereto and all other
Holders), but only if prior to the time the notice is given the Trustee
shall have received a certificate of an officer of DLJ to the effect
that no DLJ Affiliate intends to make a market in any security of the
Corporation (in relying on which the Trustee shall be fully protected);
or
(d) transfer of all of the Shares in accordance with Section 9; or
(e) the effective date of a liquidation of dissolution of the
Corporation.
An election pursuant to section 8(b) or 8(c) above shall be effective
upon delivery of notice hereof (together with the required copy of the
opinion) to the Trustee.
Upon the termination of the voting trust herein created, the Holders
shall surrender their Trust Certificates to the Trustee, and the
Trustee shall deliver or cause to be delivered to the Holders
certificates (or the equivalent evidence of ownership in the case of
Share Equivalents) for Shares, properly endorsed for transfer (to the
extent necessary), equivalent to the number and type of Shares the
beneficial interest in which was represented by the respective Trust
Certificates surrendered.
9. TRANSFER. Except as provided in subsections (a), (b), (c), (d),
(e) and (f) of this Section 9, certificates (or the equivalent evidence
of ownership in the case of Share Equivalents) for Shares may not be
delivered to a Holder, a Holder's designee or any other third party
prior to the termination of the voting trust created herein.
(a) A Holder may notify the Trustee in writing that the Holder
desires to cause a certificate or certificates (or the equivalent
evidence of ownership in the case of Share Equivalents) for Shares in
which the Holder has a beneficial interest hereunder to be transferred
to any person or entity only if such transfer is an Eligible Transfer
as defined herein. Any person or entity that acquires Shares pursuant
to an Eligible Transfer is hereinafter referred to as an "Eligible
Transferee".
For purposes of this Section 9 but subject to the limitations on
transfer set forth in this Section 9, an "Eligible Transfer" is
defined as any transfer of Shares.
(i) to a person who is not a DLJ Affiliate;
(ii) to a person who is a DLJ Affiliate; provided that,
contemporaneously with such transfer the DLJ Affiliate (x) becomes a
party to this Agreement and (y) assigns and delivers such Shares to the
Trustee to be held pursuant to this Agreement.
(iii) to an investment advisory account as to which a Control
Affiliate is an investment adviser, the assets of which account are not
owned by a Control Affiliate;
(iv) to any Employee Affiliate other than a person holding
the position of Senior Vice President or above (or performing the
comparable function) of DLJ or any of its subsidiaries or to an Other
Affiliate, unless in either case a contract or other arrangement (other
than this Agreement) regarding the voting of such Shares exists between
such Employee Affiliate or Other Affiliate and any Control Affiliate;
(v) to DLJSC for the account of any person or entity other
than a Control Affiliate of Employee Affiliate or in the name of a
customer account, which customer is a person or entity other than a
Control Affiliate or an Employee Affiliate; provided, however, that
DLJSC may vote the shares only when instructed by the beneficial owner
thereof or as otherwise permitted under the rules of all exchanges on
which the Share are listed; or
(vi) by any Holder which is a limited partnership (a
"Limited Partnership") to a limited partner as long as such limited
partner is not a Control Affiliate and as long as the Limited
Partnership will be fully divested of dispositive and voting power over
such Shares being transferred after such transfer.
Such notice shall name such Eligible Transferee and shall state (i) its
mailing address, (ii) the proposed transfer date (which date shall be
not less than five days after the Trustee's receipt of such notice),
(iii) the number of Shares to be transferred, and (iv) the
consideration, if any, to be paid by such Eligible Transferee therefor.
The notice to the Trustee shall also contain a representation that such
transferee is an Eligible Transferee and shall be accompanied by a
Trust Certificate or Certificates of the Holder, duly endorsed for
transfer, representing not less than the number of Shares to be
transferred to the Eligible Transferee. On the date specified in such
notice, and upon receipt by the Trustee from such Eligible Transferee
of the specified consideration, if any, the Trustee shall deliver: (i)
to the Eligible Transferee, a certificate for the number of Shares
specified in such notice, registered in the name of the Trustee and
duly endorsed for transfer, and (ii) to the Holder, (x) a Trust
Certificate representing a number of share equal to the number of
Shares represented by the surrendered Trust Certificate less the number
of Shares transferred to such Eligible Transferee, and (y) the
consideration, if any, received from such Eligible Transferee
distributed immediately pursuant to transfer instructions set forth on
Schedule B attached hereto or otherwise communicated to the Trustee in
writing. Any Holder may, in connection with any Eligible Transfer and
in lieu of causing the Trustee to receive the specified consideration
from the Eligible Transferee, request the Trustee to release the
certificates for the Shares and the Trust Certificates against
certification by such Holder of the receipt of the specified
consideration from the Eligible Transferee.
(b) A Holder (hereinafter referred to as a "Requesting Party" for
the purpose of this Section 9(b) may request of the Trustee in writing
that the Trustee transfer to such Requesting Party a certificate or
certificates for Shares in which the Requesting Party has a beneficial
interest hereunder; provided, however, that the Trustee shall not honor
such request if after giving effect thereto the Holders and all other
DLJ Affiliates will own in the aggregate in excess of five percent (5%)
of the total number of shares then outstanding of the voting capital
stock of any class of the Corporation computed as set forth in Section
2(b) hereof, and provided further if the Requesting Party is not DLJ,
the Trustee shall not honor such request unless DLJ consents in writing
to such request. In determining, for purposes of this Section 9(b)
only, whether DLJ Affiliates will own in the aggregate in excess of 5%
of the total number of shares of the voting capital stock of any class
of the Corporation then outstanding, (x) no effect shall be given to
the exclusions set forth in Section 2(b), (y) shares of voting capital
stock underlying Share Equivalents owned by a DLJ Affiliate shall be
deemed to be outstanding and owned by such DLJ Affiliate and (z) shares
of Common Stock held by the Trustee pursuant to this Agreement shall be
excluded. Such written request shall name such Requesting Party and
shall state (i) the proposed transfer date (which date shall be not
less than five days after the Trustee's receipt of such request), and
(ii) the number of Shares to be transferred. The notice to the Trustee
shall also be accompanied by (i) a Trust Certificate or Certificates of
the Requesting Party, duly endorsed for transfer, representing not less
than the number of shares then outstanding of the voting capital stock
of any class of the Corporation. On the date specified in such
request, and upon receipt by the Trustee from the Requesting Party of
such certificates, the Trustee shall deliver to the Requesting Party a
certificate (or the equivalent evidence of ownership in the case of
Share Equivalents) for the number of Shares specified in such notice,
registered in the name of the Trustee and duly endorsed for transfer.
(c) Any Eligible Transferee to whom a Trust Certificate has been
transferred may notify the Trustee in writing that it desires to cause
a certificate or certificates for Shares in which it has a beneficial
interest to be transferred to it. Such notice shall name such Eligible
Transferee and shall state (i) its mailing address, (ii) the proposed
transfer date (which date shall be not less than five days after the
Trustee's receipt of such notice), (iii) the number of Shares to be
transferred and (iv) that such transferee is an Eligible Transferee.
The notice to the Trustee shall also be accompanied by a Trust
Certificate or Certificates of the Eligible Transferee, duly endorsed
for transfer, representing not less than the number of Shares to be
transferred to the Eligible Transferee. On the date specified in such
notice, the Trustee shall deliver to the Eligible Transferee: (i) a
certificate for the number of Shares specified in such notice,
registered in the name of the Trustee and duly endorsed for transfer,
and (ii) a Trust Certificate representing a number of Shares equal to
the number of Shares represented by the surrendered Trust Certificate
less the number of Shares transferred to such Eligible Transferee.
(d) A Holder may at any time direct the Trustee by notice in
writing to transfer a certificate or certificates for Shares in which
the Holder has a beneficial interest hereunder (i) to an underwriter or
placement agent (including DLJSC) in connection with a public offering
of the Shares registered under the 1933 Act or otherwise or (ii) in
connection with sales made pursuant to Rule 144 under the 1993 Act
through a broker-dealer (including DLJSC). Such notice shall state (a)
the underwriter's, placement agent's or broker dealer's mailing
address, (b) the proposed transfer date (which date shall not be less
than five days after the Trustee's receipt of such notice), (c) the
number of Shares to be transferred, and (d) the consideration, if any,
to be paid. The notice shall also be accompanied by a certificate of
an officer of the Holder certifying that the purpose of such request is
being made solely for sales made in connection with a public offering
or private placement of the Shares of sales made pursuant to Rule 144
under the 1933 Act and a Trust Certificate or Certificates of the
Holder, duly endorsed for transfer, representing not less than the
number of Share to be transferred. The Trustee shall be entitled to
conclusively rely upon such certificate. On the date specified in such
notice, and upon receipt by the Trustee from such underwriter,
placement agent or such other transferee of the specified
consideration, if any, the Trustee shall deliver: (x) to the
underwriter, placement agent or such other transferee, a certificate
for the number of Shares specified in such notice, registered in the
name of the Trustee and duly endorsed for transfer, and (y) to the
Holder, a Trust Certificate representing a number of Shares equal to
the number of Shares represented by the surrendered Trust Certificate
less the number of Shares transferred to such underwriter, placement
agent of such other transferee, and (z) to the Holder the
consideration, if any, received from such underwriter, placement agent
or such other transferee. Such consideration shall be distributed
promptly to the Holder pursuant to transfer instructions set forth on
Schedule B attached hereto. Any Holder may, in connection with any
such transfer and in lieu of causing the Trustee to receive the
specified consideration from the underwriter or other transferee,
request the Trustee to release the certificates for the Shares and the
Trust Certificates against certification by such Holder of receipt of
the specified consideration from the underwriter or other transferee.
Notwithstanding the foregoing, if the Holder intends to transfer Shares
pursuant to the exercise of the over-allotment option granted to the
underwriters in connection with the initial public offering of the
shares of Common Stock of the Corporation, the transfer date in the
notice may be less than five but shall not be less than two days after
the Trustee's receipt of such notice.
(e) In connection with any transfer of Shares under Section
9(a)(i), (iv) or (v), the Holder (together with any other Holders who
may be acting in concert) shall not direct the Trustee to transfer,
whether in a single transaction or in a series of related transactions,
a certificate or certificates (or the equivalent evidence of ownership
in the case of Share Equivalents) for Shares representing ten percent
(10%) or more of the total number of shares then outstanding of the
voting capital stock (of all classes) of the Corporation, where such
transfer is to a single Eligible Transferee or to Eligible Transferees
acting as a group. Notwithstanding the foregoing, the limitation on
transfer under this section shall not be applicable to a transfer of
Shares in connection with (A) any acquisition of the Corporation,
whether by merger, reorganization or sale of all or substantially all
of the assets of the Corporation, in which the holders of the Common
Stock of the Corporation prior to the merger, consolidation or sale
cease to hold at least 51% of the Common Stock of the surviving entity
or (B) in response to an offer to purchase or exchange for cash or
other consideration any voting stock (i) which is made by or on behalf
of the Corporation, or (ii) which is made by another person or group
and is not opposed by the Board of Directors of the Corporation within
the time the Board is required under the regulations under the Exchange
Act to advise the stockholders of the Corporation of the Board's
position on such offer, of (C) any other offer by another person or
group to purchase or exchange for cash or other consideration any
voting capital stock, which, if successful, would result in such person
or group owning or having the right to acquire voting capital stock
representing a majority of the total voting power of the Corporation
then in effect.
(f) In connection with any transfer of Shares under Section 9(d),
DLJ shall use its reasonable best efforts to ensure that the public
offering or private placement as it relates to Shares for sale by or on
behalf of the Holder (together with any other Holder who may be
participating in such offering or placement) shall be structured to
distribute such shares through an underwriter, placement agent or
otherwise in such a manner as will not result in a sale or sales of the
Shares representing ten percent (10%) or more of the total number of
shares then outstanding of the voting capital stock of any class of the
Corporation to any person or group.
Nothing in this Section 9 or elsewhere in this Agreement shall prohibit
a Holder from transferring Trust Certificates in accordance with the
terms of the Trust Certificates.
10. INCREASE OR DECREASE IN NUMBER OF SHARES. In the event of an
increase in the number of Shares by virtue of a stock split or the
decrease in the number of Shares because of a contraction of shares or
a change in the number of outstanding shares as a result of some other
recapitalization in which the Corporation receives no consideration for
the issuance of the additional or reduced number of shares, the new
additional or changed number of Shares shall be held by the Trustee
under this Agreement, the Trust Certificates outstanding immediately
prior to such increase, decrease or change in the number of outstanding
Shares shall thereupon represent the beneficial interest in the number
of Shares to which the Holders are entitled as a result of such
increase, decrease or change, and new Trust Certificates representing
the appropriate changed number of Shares shall be issued to Holders
upon surrender of the then existing Trust Certificates.
11. SUCCESSOR TRUSTEE. There shall initially be on Trustee of the
voting trust created herein. Upon the liquidation, dissolution,
winding-up, suspension, incapacity, resignation or removal (in
accordance with Section 12 below) of the initial Trustee, DLJ or the
Majority Holders shall appoint a successor Trustee; provided, however,
that such successor Trustee may not be a control Affiliate, and
Employee Affiliate, or an Other Affiliate unless such Other Affiliate
is a bank or trust company. In the event a successor Trustee shall not
have been appointed within 30 days of such removal, the Trustee may
petition a court of competent jurisdiction to appoint such a successor.
In the event that the Trustee consolidates with, merges or converts
into, or transfers all or substantially all of its corporate trust
assets to, another corporation that is a bank or trust company, the
surviving or transferee corporation may become the successor Trustee
upon notice to the signatories hereto, but without further action by
the signatories or any Holder.
12. REMOVAL/RESIGNATION OF TRUSTEE.
(a) A Trustee may be removed at the instance of DLJ or the
Majority Holders:
(i) if it is determined as a result of binding arbitration
pursuant to this Section 12, that either the Trustee (A) willfully and
materially violated the terms of the trust created herein, or (B) the
Trustee has been guilty of malfeasance, misfeasance or dereliction of
duty hereunder;
(ii) if the Trustee shall have commenced a voluntary case or
other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar official
of it or any substantial part of its property, or shall have consented
to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced
against it, or shall have made a general assignment for the benefit or
creditors, or shall have failed generally to pay its debts as they
become due, or shall have taken any corporate action to authorize any
of the foregoing; or
(iii) if an involuntary case or other proceeding shall have
been commenced against the Trustee seeking liquidation, reorganization
or other relief with respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking
the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall have remained
undismissed and unstayed for a period of 60 days; or an order for
relief shall have been entered against the Trustee under the federal
bankruptcy laws as now or hereafter in effect.
(b) If DLJ or the Majority Holders determine that a basis for
removal of the Trustee under Section 12(a) above, they shall deliver
written notice of such determination to the Trustee stating the basis
for such removal.
(c) Any arbitration pursuant to this Section 12 shall be conducted
in accordance with this Section 12(c). DLJ, the Holders, and the
Trustee agree and hereby acknowledge that only the propriety of the
removal of the Trustee pursuant to this Section 12 shall be subject to
arbitration and that no other controversies arising under this
agreement shall be subject to arbitration unless otherwise expressly
agreed by the Trustee, DLJ, and the Holders in a separate document.
Such arbitration shall be governed by the commercial rules of the
American Arbitration Association to the extent not inconsistent with
this Agreement. Such arbitration shall be conducted in New York, New
York. Within 15 days after the notice required by Section 12(b) above,
the Trustee shall choose one arbitrator and DLJ or the Majority Holders
shall choose one arbitrator; and, within 15 days after the selection of
both such chosen arbitrators, the two arbitrators shall choose an
impartial third arbitrator. The decision of a majority of such
arbitrators shall be final and binding on DLJ, the Holders and the
Trustee.
(d) The Trustee may resign its position as such hereto, but only
if successor Trustee, appointed as provided for in Section 11 above has
agreed to serve as such effective upon the effectiveness of the
resignation of the Trustee then acting, or (ii) in any event upon
thirty days written notice to DLJ.
13. ACCEPTANCE OF TRUST; TRUSTEE MAY OWN SHARES. The Trustee hereby
accepts the trust created hereby and agrees to carry out the terms and
provisions hereof, but assumes no responsibility for the management of
the Corporation or for any action taken by it, by any person elected as
a director of the Corporation or by the Corporation pursuant to any
vote cast or consent given by the Trustee. Nothing in this Agreement
shall prevent the Trustee from owning shares or options to purchase
shares in its individual capacity or in any capacity other than as
trustee hereunder or for any DLJ Affiliate.
14. TRUSTEE NOT AN AFFILIATE. The Trustee represents that it is a
bank or trust company which is not a Control Affiliate or an Employee
Affiliate.
15. COMPENSATION; EXPENSES. Reasonable expenses lawfully incurred in
the administration of the Trustee's duties hereunder shall be
reimbursed to it by DLJ. During the period of its services hereunder,
the Trustee shall receive from DLJ (i) an initial fee of $3,000; (ii)
thereafter, during the period of its services hereunder, a fee of
$4,500 per annum, payable quarterly in arrears and (iii) thereafter,
such fee as the parties may from time to time agree. Such
compensation, expenses and fees payable under this Section 15 shall
survive the termination of this Agreement.
16. MERGER, ETC. Upon any merger, consolidation, reorganization or
dissolution of the Corporation or the sale of all or substantially all
of the assets of the Corporation pursuant to which shares of capital
stock or other voting securities of another entity are to be issued in
payment or exchange for or upon conversion of Shares and other voting
securities, the shares of said other entity shall automatically be and
become subject to the terms of this Agreement and be held by the
Trustee hereunder in the same manner and upon the same terms as the
Shares, and in such event the Trustee shall issue to the Holders that
have deposited Shares with the Trustee new Trust Certificates in lieu
of the old Trust Certificates for the appropriate number of shares and
other voting securities of such other entity.
At the request of any Holder, the Trustee may transfer, sell or
exchange or join with the Holder in such transfer, sale or exchange of
shares and other voting securities in exchange for shares of another
corporation, and in side event that shares and other securities of the
other corporation received by the transferor shall be and become
subject to this Agreement and be held by the Trustee hereunder in the
same manner as the Shares.
17. NOTICES. All notices, reports, statements and other
communications directed to the Trustee from the Corporation shall be
forwarded promptly by the Trustee to DLJ and each Holder. All notices,
notices of election and other communications required herein shall be
given in writing by overnight courier, telegram or facsimile
transmission and shall be addressed, or sent, to the appropriate
addresses as set forth beneath the signature of each party hereto, or
at such other address as to which notice is given in accordance with
this Section 17.
18. INDEMNITY, ETC. The Trustee shall be indemnified from and against
any and all loss, liability, claim, damage and expense whatsoever
(including, but not limited to, any and all expense whosoever
reasonably incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claims whatsoever) (the
"Indemnified Claims") arising out of or based upon this Agreement, or
the actions or failures to act of the Trustee hereunder, except to the
extent such loss, liability, claim, damage or expense is caused by or
results from the Trustee's gross negligence or willful misconduct (as
determined by a final and unappealable order of a court of competent
jurisdiction). DLJ agrees that it will indemnify and hold harmless the
Trustee from and against any Indemnified Claims. DLJ's obligation
hereunder shall survive the transfer of all or any of the Shares from
the trust, the termination of the voting trust created herein, or the
resignation or removal of the Trustee.
The Trustee shall be entitled to the prompt reimbursement for its our-
of-pocket expenses (including reasonable attorney's fees and expenses)
incurred in investigating, preparing or defending against any
litigation, commenced or threatened, arising out of or based upon this
Agreement, or the actions or failures to act of the Trustee hereunder,
without regard to the outcome of such litigation; provided, however,
that the Trustee shall be obligated to return any such reimbursement if
it is subsequently determined by a final and unappealable order of a
court competent jurisdiction that the Trustee was grossly negligent or
engaged in willful misconduct in the matter in question. Such expensed
shall be payable by DLJ.
If a claim under this Section 18 is not paid in full within 30 days
after a written claim has been submitted by the Trustee, the Trustee
may at any time hereafter bring suit to recover the unpaid amount of
the claim and, if successful in whole or in part, the Trustee shall be
entitled to be paid also the expense of prosecuting such claims.
The Trustee is authorized and empowered to construe this Agreement and
its construction of the same, made in good faith, shall be final,
conclusive, and binding upon all Holders and all other parties
interested. The Trustee may, in its discretion, consult with counsel
to be selected and employed by it, and the reasonable fees and expenses
of such counsel shall be an expense for which the Trustee is entitled
to indemnity hereunder.
19. CERTAIN CALCULATIONS. For purposes of Sections 2 and 9 and the
definition of "Majority Holders," a Holder owning a Trust Certificate
representing Shares defined as such by Section 1(p) shall, in respect
of such ownership, be deemed to be the Holder of a Trust Certificate
representing the number of shares of voting capital stock of the
Corporation that the Trustee, acting on behalf of such Holder, may
acquire, whether by conversion, subscription or otherwise, pursuant to
or by reason of ownership of such Shares.
20. COUNTERPARTS. This Agreement may be executed in multiple
counterparts all of which counterparts to together shall constitute one
agreement. Upon execution of this Agreement and the establishment of
the voting trust created herein, the Trustee shall cause a copy of this
Agreement to be filed in the registered office of the Corporation in
the State of Delaware and the Agreement shall be open to inspection in
the manner provided for inspection under the laws of the State of
Delaware.
21. CHOICE OF LAW. This Agreement is intended by the parties to be a
voting trust agreement under Section 218 of the General Corporation Law
of the State of Delaware and shall be governed and construed in
accordance with the laws of the State of Delaware.
22. BOND. The Trustee shall not be required to provide any bond to
secure the performance of his duties hereunder.
23. RELIANCE. The Trustee, the signatories hereto and each Holder
acknowledge that DLJ will rely on this Agreement in complying with the
federal securities laws. The Trustee acknowledges that DLJ will rely
on the Trustee abiding by the terms of this Agreement, including,
without limitation, that (x) the Trustee will vote the Deposited Shares
in its sole and absolute discretion and will not consult with any DLJ
Affiliate regarding the voting of such Shares and (y) the Trustee will
not consent to any amendment or waiver of this Agreement prohibited by
Section 24 hereof whether or not such amendment or waiver is approved
by each of the parties hereto and the Holders. DLJ will cause each
Control Affiliate to perform the covenants hereof that are applicable
to Control Affiliates.
24. AMENDMENTS AND WAIVERS. This Agreement may not be amended or
waived in any material respect unless DLJ shall have delivered to the
Trustee an opinion (in relying on which the Trustee shall be fully
protected) of independent nationally recognized counsel who are experts
in matters involving the federal securities law, that, immediately
after such amendment or waiver, no DLJ Affiliate will be an
"affiliate" of the Corporation within the meaning of Rule 144 under
the Securities Act. Subject to the foregoing, this Agreement may be
amended with the written consent of the Trustee, DLJ and the Majority
Holders, and if so amended then this Agreement (as so amended) shall
bind all of the parties hereto and all of the Holders.
25. SEVERABILITY. In case any provision in the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
EXECUTED as of the date and year first above written.
NORWEST BANK INDIANA, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Address: Corporate Trust Department
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SPROUT CAPITAL VI, L. P.
By: DLJ CAPITAL CORPORATION
Its: Managing General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
SPROUT CAPITAL VII, L. P.
By: DLJ CAPITAL CORPORATION
Its: Managing General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
DLJ ESC II, L. P.
By: DLJ LBO PLANS MANAGEMENT CORPORATION
Its: Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
THE SPROUT CEO FUND, L. P.
By: DLJ CAPITAL CORPORATION
Its: Managing General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
DLJ CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
SCHEDULE A
(Initial Deposit)
Name Shares Deposited
Sprout Capital VI, L.P. 3,332,241
Sprout Capital VII, L.P. 6,803,405
DLJ ESC II, L.P. 0
The Sprout CEO Fund, L.P. 0
DLJ Capital Corporation 0
Total 10,135,646
SCHEDULE B
TRANSFER INSTRUCTIONS
SPROUT CAPITAL VI, L. P.
All payments shall be made by check mailed to:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
SPROUT CAPITAL VII, L. P.
All payments shall be made by check mailed to:
Sprouts Capital VII, L. P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
DLJ ESC II, L. P.
All payments shall be made by check mailed to:
DLJ ESC II, L. P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
THE SPROUT CEO FUND, L. P.
All payments shall be made by check mailed to:
The Sprout CEO Fund, L. P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
DLJ CAPITAL CORPORATION
All payments shall be made by check mailed to:
DLJ Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
THE TRANSFER OF THIS VOTING TRUST CERTIFICATE IS SUBJECT TO
TERMS AND CONDITIONS SET FORTH IN THE VOTING TRUST
AGREEMENT DATED AS OF NOVEMBER 15, 1999, A COPY OF WHICH
HAS BEEN FILED IN THE REGISTERED OFFICE IN THE SATE OF
DELAWARE OF QUINTUS CORPORATION, A DELAWARE CORPORATION
(THE "CORPORATION"). SUCH COPY IS OPEN TO THE INSPECTION
DAILY DURING BUSINESS HOURS BY ANY STOCKHOLDER OF THE
CORPORATION OR ANY BENEFICIARY OF THE VOTING TRUST CREATED
PURSUANT TO SUCH VOTING TRUST AGREEMENT.
QUINTUS CORPORATION
VOTING TRUST CERTIFICATE
Certificate No. ______ No. of Shares: _____ shares
of Common Stock, par value
$.001 per share
This certifies that ____________________________ (the "Holder") has
transferred to the undersigned Trustee or is otherwise the beneficial
owner of the above-stated number of Shares (as defined in the Voting
Trust Agreement referred to below) of Quintus Corporation, a Delaware
corporation (the "Corporation"), to be held by the Trustee pursuant to
the terms of the Voting Trust Agreement dated as of November 15, 1999
(the "Voting Trust Agreement"), a copy of which agreement has been
delivered to the above-named Holder and filed in the registered office
of the Corporation in the State of Delaware. The Holder, or its
registered assigns, will be entitled (i) to receive payment equal to
any and all cash dividends collected by the Trustee on the above-stated
number of Shares, (ii) to receive all other dividends or distributions
except to the extent that property received is required to be deposited
in the trust created by the Voting Trust Agreement, and (iii) to
receive a certificate or certificates representing that number of
Shares on the termination of the Voting Trust Agreement, in accordance
with its provisions.
This Voting Trust Certificate is transferable on the books maintained
by the Trustee at the principal office of the Trustee by the registered
holder hereof, in person or by duly authorized attorney, and upon
surrender hereof, and until so transferred the Trustee may treat the
registered holder hereof as the absolute owner hereof for all purposes.
The Holder and each subsequent registered holder hereof, by the
acceptance of this Voting Trustee Certificate, agrees to be bound by
all of the provisions of the Voting Trust Agreement as fully as if its
terms were set forth in this Voting Trust Certificate.
EXECUTED this ______ day of ______________________, 1999
NORWEST BANK INDIANA, N.A.
As Trustee
By: __________________________
Name:
Title:
[Form of Assignment for reverse of Voting Trust Certificate]
For value received, ___________________________ hereby sells, assigns,
and transfers unto __________________________________ the within Voting
Trust Certificate and all rights and interests represented thereby, and
does hereby irrevocably constitute and appoint
______________________________ attorney to transfer such Voting Trust
Certificate on the books of the within-named Trustee with full power of
substitution in the premises.
Date: _______________________________
Signed: _____________________________
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